JAGDISH PRASAD SHARMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been filed for quashing an order dated 20-12-1983 and subsequent order dated 3-1-1984 purporting to have been passed under Section 91 of the Code by the 1st Class Judicial Magistrate, Araria.

(2.) The facts leading to the present application are that on 21-7-1983 one Nakul Kumar Jha, Sales Manager of Himalaya Medical Hall Biratnagar had paid Rs. 1,05,000.00 to petitioner No. 1, who happened to be the Cashier of that firm at Jogbani, for getting a draft prepared in favour of Bombay Medicinal Shop in a liank at Jogbani. But, instead of getting the draft prepared, petitioner No. 1 became traceless with the money and as such Nakul Kumar Jha lodged a First Information Report with the Jogbani police on 25-7-1983 and the said police registered a case against him under Section 406 of the Indian Penal Code. In course of investigation the petitioner and his brothers including petitioner No. 2 were arrested at their house in the state of Rajasthan. The police also seized two passbooks standing in the name of the petitioners with the State Bank of Bikaner and Jaipur. After this seizure the informant and his master, namely, Bhagwan Das Lohia, filed an application before the learned Judicial Magistrate at Araria for issuance of summons to the Manager of Khanda Falsa Branch of State Bank of Bikaner and Jaipur and also to the Manager of Nokha Branch of the said Bank to send to the court A/c payee draft of Rs. 7200.00 and Rs. 90,300.00 respectively in the name of Bhagwan Das Lohia aforesaid-both payable at State Bank of India at Jogbani. At that time the two petitioners had also sent an application to the court concerned for allowing the said prayer of Bhagavvan Das Lohia and they also sent discharge certificates in the name of the Bank concerned. Eventually, on 20-12-1983 the learned Magistrate directed the said Banks to send the money in A/C payee drafts in the name of Bhagawan Das Lohia, as prayed for by him with a stipulation that the money shall not be released to Bhagwan Das Lohia till the disposal of the case. Before the said direction could be sent to the Banks concerned, the two petitioners filed a petition in court for recalling the order dated 20-12-1983 as the two petitions and the discharge certificates alleged to have been sent by them from jail were not genuine documents, rather they were fraudulent documents brought into existence after taking their signatures thereon by deceitful means. The learned Magistrate, however, rejected this petition of the petitioners by order dated 3/1/1984. The peiitioners have now come to this Court against the aforesaid two orders.

(3.) The submission of the learned counsel appearing for the petitioners is that the learned Magistrate had no jurisdiction to pass the impugned order dated 20-12-1983 in the terms in which it has been passed and the said order was beyond the scope of Section 91 of the Code under which the learned Magistrate has purported to have passed the impugned order. It was strongly contended that the learned Magistrate could not pass such an order in exercise of his powers under Section 91 of the Code. For proper appreciation of this submission it would be necessary to refer to the operative part of this order which is as follows : -